1 United States Court of Appeals

Fifth Circuit



## FILED

December 27, 2005

Charles R. Fulbruge III

Clerk 

## In the United States Court of Appeals

For the Fifth Circuit

No. 03-51139

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TRAVIS JAMES HARRIS,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

Before JOLLY, DENNIS and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Travis James Harris signed a waiver of his right to appeal his conviction and sen t ence but

reserved “the right to appeal a sentence in excess of the Guidelines.” Because the di stri ct court

correctly applied the Sentencing Guidelines and the sentence imposed did not exceed them, the appeal

should be dismissed.2 I

Harris threw a homemade explosive device, a “Molotov cocktail,” into the City of Monahans

Muncipial Buil ding in Monahans, Texas causing an explosion and an ensuing fire that severely

damaged the building. Based on this conduct, Harris was charged with violating sections 844(i) and

924(c)(1) of Title 18 of the U.S. Code. He pleaded guilty, and as part of his guilty plea, agreed to

the following waiver of appeal:

The Defendant waives the right to appeal any aspect of the conviction and sentence,

and waives the right to seek collateral relief in post conviction proceedings, including

proceedings under 28 U .S.C. § 2255. This waiver does not apply to ineffective

assistance of counsel or prosecutorial mi s conduct of constitutional dimension of

which the Defendant did not have knowledge at the time of sentencing. Defendant

reserves the right to appeal a sentence in excess of the Guidelines.

The last sentence, “Defendant reserves the right to appeal a sentence in excess of the Guidelines,” was

a handwritten provision inserted into the otherwise typed plea agreement.

After Harris entered his guilty plea, a United States probation officer prepared a presentence

investigation report (PSR). For the first offense, the PSR recommended a twelve-step increase in

base offense l evel and a five-step increase in criminal history category based on the officer’s

conclusion that the felony “involved, or was intended to prom ote, a federal crime of terrorism” within

the meaning of section 3A1.4 of the United States Sentencing Guidelines Manual (U.S.S.G.). Harris

objected, arguing among other things that he did not intend to prom ote a federal crime of terrorism,

his conduct did not transcend national bo undaries, and he was not charged with violation of 18

U.S.C. § 2332b, the terrorism statute. For the second offense, the PSR recommended a consecutive

sentence of no less than 120 months.

The district court followed the PSR’s reco mmendations. Harris received the maximum

statutor y t erm o f imprisonment for the first offense, 240 months, and a consecutive term of 1203

months for the second offense. Harris’s punishment also included supervised release, restitution, and

a special assessment. Harris appeals his sentence for the first offense, arguing that he did not commit

a “federal crime of terrorism” for purposes of U.S.S.G. § 3A1.4.

II

The government contends that we should dismiss this appeal without reaching the question

of whether Harris’s conduct was a “federal crime of terrorism.” The government i nterprets the

sentence “Defendant reserves the right to appeal a sentence in excess of the Guidelines” in Harris’s

waiver of appeal to mean that we may only examine an upward departure from whatever guideline

provisions the court below chose to apply, and because there w as no upward departure from the

guidelines the district court concluded were applicable, the sentence is not “in excess of the

Guidelines.” We are foreclosed, the government says, from examining whether t he dist rict court

applied the correct guideline provisions. The government contends that no matter how substantial

an error the district court may have made in deciding which guidelines applied, the appeal waiver

prohibits review. We cannot read the waiver of appeal that broadly.

If the appeal waiver read, “Defendant reserves the right to appeal a sentence in excess of the

statutory maximum,” we would not construe that waiver to mean that we are barred from considering

whet her t he district court applied the correct statute in order to determine if the sentence the

defendant received exceeded the applicable statutory maximum. Here, we must consider whether the

court applied the correct guidelines in order to determine if the sent e nce imposed exceeded the

applicable guidelines.

The sentence “Defendant reserves the right to appeal a sentence in excess of the Guidelines”

does not unambiguously waive a complaint that the wrong guidelines were applied, and any ambiguity1 See United States v. Somner , 127 F.3d 405, 408 (5th Cir. 1997).

2 See id. (“The waiver [of appeal] must be construed against the government.” (citing United

States v. Rosa

, 123 F.3d 94, 98 (2d Cir. 1997) (“[W]aivers of th[e] right [to appeal] must be closely

scrutinized and applied narrowly.”))).

3 McKinney v. United States , 403 F.2d 57, 59 (5th Cir. 1968).

4 U.S.S.G. § 3A1.4.

5 Section 3A1.4 provides:

(a) If the offense is a felony that involved, or was intended to promote, a federal

crime of terrorism, increase by 12 levels; but if the resulting offense level is less

than level 32, increase to level 32.

(b) In each such case, the defendant’s criminal history category from Chapter Four

(Criminal History and Criminal Livelihood) shall be Category VI.

Id

.

4 must be construed in favor of the defendant’s right to appeal. 1 A criminal defendant’s waiver of the

right to appeal relinquishes significant rights. Such a waiver therefore involves special concerns and

will be narrowly construed. 2 “[T]he right of appeal should not be considered as having been waived

or abandoned except where it is clearly established that this is the case.” 3 The phrase “in excess of

the Guidelines” does not clearly establish that the defendant agreed that inapplicable guidelines would

be the benchmark by which his right to appeal would be measured.

Harris contends that the district court erred in concluding that the offense to which he pleaded

guilty “involved, or was intended to prom ote, a federal crime of terrorism.” 4 At the time Harris was

sentenced, the Guidelines were mandatory, and under section 3A1.4 of the Guidelines, the district

court’s determination meant that the court was to apply an upward adjustment of 12 to Harris’s base

offe nse level and that his criminal history category would automatically be VI. 5 Harris’s criminal

history category would otherwise have been I, and the upward adjustment by 12 levels was similarly6 406 F.3d 744, 746 (5th Cir. 2005).

7 Id

.

8 125 S. Ct. 738 (2005).

9 McKinney

, 406 F.3d at 746 (“Assuming arguendo that McKinney’s calculations are correct,

this definition of ‘guidelines range’ would allow him to avoid the appeal waiver provisions, because

he was sentenced to 84 months, and he claims that the facts admitted in his guilty plea authorized a

maximum of only 57 months.”).

10 Id . at 747 (emphasis added).

11 Id

.

5 significant. If Harris’s offense was not a federal crime of terrorism, the district court did not apply

the correct guidelines, and his sentence would exceed the guideline range by nearly 200 months.

This court strongly implied, if not held, in Unite d States v. McKinney that an analogous

waiver required a determination of whether the guideline range had been calculated properly. 6 In that

case, McKinney waived appeal “unless the Court upwardly departs from the guidelines.” 7 The district

court sentenced him to 84 months, which was a downward departure from that court’s calculation

of a guideline range of 135 to 168 months. On appeal, McKinney contended that the district court

incorrectly applied the Sentencing Guidelines because it considered facts that he had not admitted and

t hat had no t been found by a jury, citing U nited States v. Booker

. 8 This court concluded that if

McKinney’s argument were correct a nd his guilty plea authorized a maximum of 54 months

imprisonment, then the appeal waiver would not apply because he was sentenced to 84 months, 30

months in excess of the Guidelines. 9 The court concluded, however, that B ooker did not change

“what an appropriate guidelines range is,” 10 and therefore “the range from which we determine

whether McKinney was granted an upward departure (for the purpose of the appeal-waiver provision)

was 135 to 168 months.” 11 This court recognized that it was necessary to decide whether the12 Id

. at 746 (reciting that the defendant agreed “appeal is waived ‘unless the Court upwardly

departs from the guidelines’”).

13 See United States v. Somner , 127 F.3d 405, 407-08 (5th Cir. 1997).

14 Id . at 407.

15 Id. at 408.

6 guideline range had been correctly calculated before it could determine if there had been an upward

departure from “the [G]uidelines.” 12 Here, we must likewise determine whether the guideline range

was correctly calculated before we can determine if Harris’s sentence is in excess of “the Guidelines.”

The government seems concerned that interpreting “in excess of the Guidelines” to mean in

excess of t he co rrectly calculated guidelines would allow Harris to raise any number of issues on

appeal and effectively undercut most of the waiver’s effect. That may be so. But we must construe

the waiver as it is written. When except ions to waivers of appeal have been written broadly, this

court has given effect to that breadth even though it meant that few appellate rights were waived. 13

In United States v. Somner , the waiver provided:

[T]he defendant agrees to voluntarily waive the right to appeal

. . . the sentence or the

manne r in which it was determined . . . . However, the defendant may appeal a

sentence:

. . . (b) that includes an upward departure from the Sentencing Guidelines,

which upward depart ure had not been requested by the United States Attorneys

Office or (c) that includes or is based on a material and unlawful misapplication of the

Sentencing Guidelines by the Court. 14

The defendant in Somner challenged several upward adjustments, the calculation of his criminal

history, and an upward departure from the Guidelines. This court held that the waiver foreclosed

review of only the upward departure, which had been requested by the government. 1516 United States v. Solis-Garcia

, 420 F.3d 5 11, 513-14 (5th Ci r. 2005); U nited States v.

Creech

, 408 F.3d 264, 270 (5th Cir. 2005); United States v. Villanueva

, 408 F.3d 193, 202-05 (5th

Cir. 2005); United States v. Villegas

, 404 F.3d 355, 359-62 (5th Cir. 2005); see also United States

v. Holmes , 406 F.3d 337, 363 (5th Cir. 2005) (stating, in the course of reviewing an enhancement,

“We review a district court’s finding of obstruction of justice for clear error.”).

17 U.S.S.G. § 3A1.4.

18 Id . at cmt. n.1.

19 18 U.S.C. § 2332b(g)(5).

7 We must address the substance of Harris’s contention that his offense was not a federal crime

of terrorism. We review the district court’s interpretation and application of the Guidelines d e novo

and its factual findings for clear error. 16

III

Upward adjustments were to be applied under se ct io n 3A1.4 of the Sentencing Guidelines

“[i]f the offense is a felony that involved, or was intended to prom ote, a federal crime of terrorism.” 17

The notes to section 3A1.4 state that “[f]or the purposes of this guideline, ‘federal crime of terrorism’

has the meaning given that term in 18 U.S.C. § 2332b(g)(5).” 18 Section 2332b(g)(5) contains the

following definition:

(g) Definitions.–As used in this section–

* * *

(5) the term “Federal crime of terrorism” means an offense that–

(A) is calculated to influence or affect the conduct of government by intimidation or

coercion, or to retaliate against government conduct; and

(B) is a violation of–

(i)

. . . 844(f)(2) or (3) (relating t o arson and bombing of Government property

risking or causing death), 844(i) (relating to arson and bombing of property used in

interstate commerce), 930(c) (relating to killing or attempted killing during an attack

on a Federal facility with a dangerous weapon) . . . . 1920 Id. § 2332b(a) (providing, as a predicate to an offense, that conduct must transcend national

boundaries).

21 Accord United States v. Nichols

, 169 F.3d 1255, 1270 n.3 (10th Cir. 1999) (noting that but

for ex post facto concerns, section 3A1.4 would “no doubt” have applied to a p urely domestic

conspiracy to bo mb a federal building in Oklahoma City). B ut see United States v. Salim

, 287

F. Supp. 2d 250, 330-54 (S.D.N.Y. 2003) (concluding that section 3A1.4 may not apply to purely

domestic activities).

22 18 U.S.C. § 2332b(g)(5).

8 Harris concedes that he pleaded guilty to a violation of 18 U.S.C. § 844(i) and therefore that

the second prong of the definition of a federal crime of terrorism is met. But he asserts there is no

evidence that his offen se was calculated to influence or affect the government’s conduct by

intimidation or coercion, or to retaliate against government conduct. He also argues that his offense

did not transcend national boundaries.

With respect to the latter argument, it is true that to establish a violation of 18 U.S.C.

§ 2332b, the conduct at issue must transcend national boundaries. 20 But the Sentencing Guidelines

do not predicate an up w ard adjustment on a violation of section 2332b. 21 Section 3A1.4 of the

Guidelines only references the specific defini t ion in 18 U.S.C. § 2332b(g)(5) and imports that

definition for the purpose of describing what constitutes a federal crime of terrorism for sentencing

enhancement purposes. The definition of a “federal crime of terrorism” in 18 U.S.C. § 2332b(g)(5),

which is incorporated into section 3A1.4, encompasses many offen ses, none of which has as an

element requiring conduct transcending national boundaries. All that section 3A1.4 requires for an

upward adjustment to apply is that one of the enumerated offenses was “calculated to influence or

affect the conduct of government by intimidation o r co ercion, or to retaliate against government

conduct.” 2223 United States v. Villanueva

, 408 F.3d 193, 202 (5th Cir. 2005); United States v. Villegas

,

404 F.3d 355, 359 (5th Cir. 2005).

24 Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 400 (1990) (quoting A nderson v.

Bessemer City

, 470 U.S. 564, 573-74 (1985)); see also Amadeo v. Zant

, 486 U.S. 214, 223 (1988).

25 United States v. United States Gypsum Co. , 333 U.S. 364, 395 (1948).

9 In reviewing whether there was evidence to support the district court’s conclusion that

Harris’s offense was “calculated to influence or affect the conduct of government by intimidation or

coercion, or to retaliate against government conduct,” we review that court’s factual findings for

clear error. 23 “‘If the district court’s account of the evidence is plausible in light of the record viewed

in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting

as the trier of fact, it would have weighed the evidence differently,’” 24 or similarly, a factual finding

is not clearly erroneous unless “although there is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been committed.” 25 The

district court did not clearly err.

Harris pleaded guilty to maliciously damaging and destroying a municipal building by means

of fire and explosive materials, in viol at ion of 18 U.S.C. § 844(i), and furthering that crime of

violence with a destructive device, in vio l ation of 18 U.S.C. § 924(c)(1). Harris used a “Molotov

cocktail” to cause an explosion in and set fire to the City of Monahans Muncipial Building. Harris

t est ified t hat his sole intent was to destroy evidence that related to his father’s arrest and that he

thought the building was empty when he threw the Molotov cocktail. The fire was started around

midnight in the room where evidence against his father was stored. However, the record reflects that

Harris had himself been arrested twice within a few days prior to the fire by t he Monahans Police

Department, which was housed in the targeted building, and twenty-four hours before his offense,26 125 S. Ct. 738 (2005).

27 Cf. United States v. McKinney , 406 F.3d 744, 746-47 (5th Cir. 2005).

28 Johnson v. United States , 520 U.S. 461, 467 (1997).

29 United States v. Mares

, 402 F.3d 511, 521 (5th Cir. 2005) (quoting United States v. Olano

, 507 U.S. 725, 734 (1993)), cert. denied , 126 S. Ct. 43 (2005).

30 Id. (quoting United States v. Dominguez Benitez

, 124 S. Ct. 2333, 2340 (2004) (internal

quotation marks and citation omitted)).

31 See id. at 521-22.

10 Harris was held in the same ro o m in which he started the fire. A retaliation charge was brought

against Harris for threatening to kill a police officer. That charge was subsequently dropped. But

the evidence, in the aggregate, is sufficient to support a finding that Harris was motivated to start the

fire by an intent to retaliate against or to intimidate the officers who had a rrest ed him and were

pursuing charges against his father.

IV

Finally, Harris contends that the district court erred in basing his sentence on facts neither

admitted by him nor found by a jury, citing United States v. Booker

. 26 Harris did not raise this issue

in the district court. More importantly, Harris has not raised any argument that this B ooker issue

survives his waiver of appeal. 27 Even assuming that it was not waived, Harris’s B ooker complaint has

no merit. He must establish (1) error, (2) that is plain, and (3) that affects substantial rights. 28 For

an error to affect substantial rights, the defendant must show that the error “affected the outcom e of

the district court proceedings.” 29 This standard requires the defendant to “demonstrate a probability

‘sufficient to undermine confidence in the outcome.’” 30 There is no indication in the record that the

district court would have imposed a lesser sentence had sentencing been under the Booker advisory

regime rather than the pre- Booker mandatory regime. 3111

Because Harris’s sentence was within the applicable Guidelines range, he has waived any right

to appeal that sentence. Accordingly, this appeal is DISMISSED.